|
Citation
|
Judgment date
|
| January 2002 |
|
|
Granting leave to defend without setting aside an ex parte judgment is ineffectual; proceedings quashed and rehearing ordered.
Civil procedure – Order 35 CPC – power to set aside decree and stay or set aside execution – validity of granting leave to appear and defend without setting aside ex parte judgment – effect of becoming a judgment debtor – High Court revisional powers to quash proceedings and order rehearing de novo.
|
30 January 2002 |
|
Leave to defend granted without setting aside an ex parte decree is ineffectual; proceedings quashed and reheard.
Civil procedure – ex parte judgment – Order 35 (set aside of decree) – leave to appear and defend – leave without setting aside ex parte decree is ineffectual and invalid – conflicting magistrates’ orders quashed – rehearing de novo ordered.
|
30 January 2002 |
|
Appellant entitled to 50% of matrimonial house; maintenance increased; earlier orders reinstated; company assets not claimable in matrimonial cause.
Family law – division of matrimonial assets – application of s.114(2)(b),(d) Law of Marriage Act 1971; contribution to construction as basis for proprietary share; maintenance – s.129 – quantum increased; corporate personality – company assets cannot be claimed in matrimonial cause (veil not pierced) – claims against company under Companies Ordinance; res judicata – earlier court orders on divorce/custody/adultery not open to be set aside by trial magistrate.
|
30 January 2002 |
|
Appeal allowed: prosecutions found malicious; appellant awarded damages for false imprisonment and destroyed crops.
Criminal law/tort – malicious prosecution and false imprisonment – elements: initiation of proceedings, termination in favour, absence of reasonable and probable cause, malice – who constitutes the prosecutor; civil damages for crop destruction; appellate review where trial court failed to address framed issues and mis-evaluated evidence.
|
29 January 2002 |
|
Appellate court allowed counterclaim for crop damage and malicious prosecution after finding prosecutions instigated without reasonable cause.
Civil procedure — appellate review where trial court failed to address framed issues; Evidence — assessment of competing witness accounts on number and locus of seized cattle; Tort — trespass/crop damage as special damages; Tort — false imprisonment and malicious prosecution: who puts law in motion, reasonable and probable cause, and malice; Remedies — set aside of lower court award, awards of special and general damages, interest and costs.
|
29 January 2002 |
|
Appellant’s counterclaim for malicious prosecution and crop-damage succeeded; lower award set aside and damages awarded.
Property/cattle disputes — proof of number and locus of seized cattle; assessment of crop-damage special damages. Tort — malicious prosecution and false imprisonment — elements (prosecution set in motion by claimant, termination favourably, want of reasonable and probable cause, malice). Appeal — lower court misdirection and failure to address framed issues; re-evaluation of evidence justified.
|
29 January 2002 |
|
Licence-based occupation by a mother does not confer acquisitive title by prescription to her child; limitation computed from child’s own occupation.
Land law — Prescription/long user — Whether licence to a mother confers acquisitive possession on a child-invitee — Computation of limitation period — Clan/customary land reversion on death of licensee.
|
28 January 2002 |
|
WEO’s unauthorized arrest caused actionable false imprisonment, but he was not liable for malicious prosecution since police, not he, initiated prosecution.
Criminal law/tort — False imprisonment — Arrest by a local officer without proof of authority — Unlawful interim detention actionable; Malicious prosecution — Elements: prosecution instituted by defendant, lack of reasonable and probable cause, malice, and termination in favour — A private complainant is not liable where the police independently decide to prosecute.
|
25 January 2002 |
|
Unlawful arrest by a ward officer without proof of judicial authority establishes false imprisonment, but malicious prosecution fails where police independently initiated prosecution.
Tort – False imprisonment – Arrest and interim detention by an administrative officer who cannot prove judicial authority is unlawful and actionable. Tort – Malicious prosecution – requires that the defendant actively set the law in motion, acted without reasonable and probable cause and with malice; independent police decision to prosecute negates liability. Evidence – proof required that a person appointed as a Justice of the Peace has taken the oath and has authority. Criminal appeal/acquittal – termination of proceedings in favour of accused is a necessary element for malicious prosecution.
|
25 January 2002 |
|
A plaintiff lacking pleaded corporate legal personality has no capacity to sue; proceedings invalid and appeal struck out.
Civil procedure – capacity to sue – corporate plaintiff must be a registered company and must plead legal personality before suing. Pleadings – necessity to aver and prove legal status – failure renders suit invalid ab initio. Consequence – proceedings founded on a party without capacity are quashed and appeal struck out. Costs – entitlement to taxed costs where proceedings are invalid for lack of capacity.
|
25 January 2002 |
|
A suit brought by an entity lacking corporate personality is invalid; proceedings are quashed and the appeal struck out.
Corporate capacity to sue – requirement of registration under Companies Ordinance (Cap. 212) – pleadings must establish legal personality – absence of capacity renders proceedings a nullity – subordinate court proceedings quashed and appeal struck out – costs awarded to respondents.
|
25 January 2002 |
|
An appeal filed ten months late was dismissed under the Limitation Act's mandatory dismissal provision; costs awarded to respondent.
Limitation of actions — appeals from original decrees — Item 1, First Schedule, Limitation Act 1971 (90 days) — s.3(1) Limitation Act: mandatory dismissal where proceedings instituted after prescribed period whether or not limitation pleaded — absence of condonation/extension application.
|
25 January 2002 |
|
Conviction for unlawful possession of a government trophy upheld; corporal punishment set aside due to appellant's age.
Criminal law – unlawful possession of government trophy (zebra carcass) – credibility of park ranger’s evidence – conviction upheld. Criminal procedure – trial dealing with only one of two counts – no successful challenge to conviction. Sentencing – corporal punishment – prohibited for persons over 45 years under Corporal Punishment Ordinance (Cap.17 s.8) – corporal sentence set aside. Sentencing – statutory minimum imprisonment under Wildlife Conservation provision upheld.
|
23 January 2002 |
|
Conviction for robbery was unlawful where appellants were charged with burglary, stealing and grievous harm; conviction quashed.
Criminal law – Conviction for uncharged offence – Section 300 Criminal Procedure Act – substitution only permitted where proved facts constitute a minor offence of that charged; Robbery (ss.285–286) cannot be substituted for burglary, stealing or grievous harm without proper charging.
|
23 January 2002 |
|
Failure to lodge petition within statutory 45 days (absent explanation) renders criminal appeal incompetent and struck out.
Criminal appeal — Time limits — Section 361(b) Criminal Procedure Act — Requirement to lodge petition within 45 days — Notice of intention to appeal under s.361(a) insufficient if petition not filed — Appeal incompetent and struck out.
|
23 January 2002 |
|
Application to protect vehicle from attachment dismissed as transfer was a scheme to evade execution.
Civil procedure – Attachment in execution – Post-decree transfer/pledge of judgment debtor’s property – Alleged fraudulent conveyance/device to evade execution – Court’s power to investigate and refuse rescission of attachment where transfer lacks bona fides.
|
18 January 2002 |
|
Court finds alleged vehicle pledge a sham to evade execution and dismisses application to set aside attachment.
Execution law – Attachment of property – Alleged pledge/transfer after decree – Sham dispositions to evade execution – Rescission of warrant of attachment.
|
18 January 2002 |
|
|
17 January 2002 |
|
Application for leave to appeal dismissed as time-barred and procedurally incompetent for failing to comply with Rules 43(a) and 46(3).
Court of Appeal procedure; Rule 43(a) — fourteen-day time limit for applications for leave to appeal; Rule 46(3) (as amended) — requirement to accompany application with copy of decision and High Court order; non-compliance with time limit and Rule 46(3) renders application time-barred and incompetent.
|
17 January 2002 |
|
Specified general damages count toward suit value for jurisdiction unless patently misvalued for forum shopping.
Civil procedure – Pecuniary jurisdiction – Whether specified sums for general damages form part of the suit value; Magistrates' Court Act monetary limits; forum shopping by over/under-valuation; counter-claim exceeding subordinate court limits transfers trial to higher court.
|
17 January 2002 |
|
A valid, broad arbitration clause did not bar court trial where interconnected claims risked conflicting decisions and multiplicity.
Arbitration clause – scope and validity – application under s.6 Arbitration Ordinance – proper procedure (petition under Arbitration Rules) – waiver and steps in proceedings – urgent relief exception – refusal to stay to avoid multiplicity and conflicting decisions.
|
17 January 2002 |
|
Decision of Minister/Board must be enforced by execution proceedings; non‑compliance attracts damages under s.27.
Employment law – enforcement of Labour Conciliation Board/Minister decisions – s.27(1)(c) Security of Employment Act 1964 – execution proceedings required, not chamber application. Employment law – failure to comply with reinstatement order – s.27(2) – court may award damages as for wrongful dismissal; court must determine non‑compliance and hear both parties.
|
11 January 2002 |
|
|
10 January 2002 |
|
A fresh bill of costs filed after remittal was struck out; instruction fee taxed at Shs. 500,000.
Costs – Bill of Costs – taxation; procedure where High Court remits quantum of instruction fees to Taxing Master; instruction fees to be assessed on basis of annual rent of suit premises; improper filing of fresh bill after remittal; court fixing/taxing reasonable instruction fee (Shs. 500,000).
|
2 January 2002 |
|
Primary Court land possession claims are governed by the 1964 Magistrates' Courts limitation rules; limitation accrues when claimant learns of invasion.
Civil procedure – limitation – Primary Court claims under customary law governed by Magistrates' Courts (Limitation of Proceedings under Customary Law) Rules, 1964 (G.N. No.110/64) – 12-year period for recovery of possession – accrual when claimant becomes aware of invasion. Limitation Act No.10 of 1971 inapplicable to Primary Court claims of this nature. Adverse possession defence requires specification of when adverse possession commenced; lack of such particulars undermines limitation defence.
|
1 January 2002 |
|
Leave to sue a specified public corporation under receivership requires proof of a debt provable in bankruptcy under section 35(3).
Public corporations – specified public corporation under receivership – applicability of s.9(1) Bankruptcy Ordinance – requirement to show a debt provable in bankruptcy before obtaining leave to sue. Bankruptcy – provable debts (s.35(3)) versus non-provable liabilities (s.35(1)–(2)). Procedure – proof of debt by affidavit (Rule 212); appeal against rejection of proof (Rules 218–219). Civil procedure – premature objections to lack of cause of action at leave stage.
|
1 January 2002 |
|
Whether an interim injunction should restrain the respondent’s mining activity pending determination of an appeal and in light of a status quo consent order.
Civil Procedure – Interim injunctions pending appeal – s.95 and Order XLIII Civil Procedure Code – stay of execution by consent abandoned – status quo orders – procedural form of application (pending application vs pending appeal).
|
1 January 2002 |
|
Whether a counsel’s large instruction fee, justified by an estimated land value, is a reasonable basis for taxation of costs.
Taxation of costs – bill of costs containing instruction/brief fee, attendance and disbursements – principles of fairness and reasonableness in assessing brief fees. Instruction/brief fees – whether counsel’s estimate of subject-matter value can justify a large brief fee. Evidence and procedure – effect of delayed filing, respondent’s failure to file submissions on taxation.
|
1 January 2002 |
|
Trial magistrate erred in striking out charge after accused's guilty plea; High Court quashed order and ordered retrial.
Criminal procedure — plea after adjournment — requirement to read charge and take fresh plea before stating facts — conviction on own plea — where facts do not disclose offence magistrate should enter plea of not guilty and allow prosecution to call evidence — absence of exhibit immaterial if accused admits seizure — striking out a charge vs acquittal — retrial ordered.
|
1 January 2002 |
|
Appellant succeeds: District Court erred on res judicata and was incompetent due to a time‑barred appeal; appeal allowed with costs.
Civil procedure – res judicata – prior criminal adjudication before Ward Tribunal cannot operate as res judicata in subsequent civil proceedings. Civil procedure – appeals – time limits under s.20(2) Magistrates Courts Act (1984) – an out‑of‑time appeal renders the appeal a nullity and deprives appellate court of jurisdiction. Land law – village council allocation of village land conclusively extinguishes competing claims once validly made.
|
1 January 2002 |
|
|
1 January 2002 |
|
Commercial dispute over competing land transactions disclosed a cause of action; defective evidential pleadings treated as superfluous, not struck out.
Civil procedure – preliminary objections – whether plaint discloses cause of action; four-corners rule (Joraj Shariff). Pleadings – Order VI, Rule 3 CPC – distinction between material facts and evidence; superfluous particulars may be treated as surplus, not ground for striking out where no prejudice. Jurisdiction – Commercial Division v Land Division: where dispute centrally arises from commercial transactions over land, Commercial Division may have jurisdiction. Advocate liability – allegations of mala fides by an advocate raise triable issues, not to be disposed on preliminaries.
|
1 January 2002 |
|
Failure of the trial court to inform the accused of his section 240(3) right to summon a PF3 author rendered the conviction a nullity.
Criminal procedure – Admissibility of medical report (PF3) – Section 240(3) Criminal Procedure Act 1985 – Court’s mandatory duty to inform accused of right to summon report’s author for cross-examination – Failure is fatal to proceedings.* Defendant’s silence or non-objection does not relieve the trial court of its duty under section 240(3).
|
1 January 2002 |
|
Sentence reduced from 30 to 5 years for manslaughter due to overlooked mitigating factors and provocation.
Criminal law - Manslaughter - Sentencing - Mitigating factors (no weapon, remorse, guilty plea, time on remand, assistance to justice) - Provocation - Appellate interference where trial court overlooked material factors.
|
1 January 2002 |